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Taking a Bus from Immanuel to Mea Shearim: The Role of Israel's High Court of Justice in Regulating Ethnic and Gender Discrimination in the Haredi Ultra Orthodox Sector

Hebrew University of Jerusalem - Faculty of Law; Columbia University - Law School

November 15, 2012

Abstract:

What is the role of the judiciary in resolving, or participating in the resolution, of highly contested social and political issues? This question, when applied in the law and religion context, carries special resonance in all modern polities, more so in societies in which religious law is part of the legal system, as in the case of Israel. The paper considers two aspects of judicial involvement in the public sphere: first, the decision in itself, and secondly, post-decision dynamics, that is, the impact of the decision on social and political processes. The analysis of the court’s role is based on two continuums. The first, concerned with judicial readiness to intervene, offers options ranging from interfervention, through shirking and evasion, to refusal, either technical or substantive. The second continuum offers a framework for the analysis of post-decision dynamics, ranging from full compliance, evasion (or “creative compliance”), to defiance. These two analytical frameworks are applied in an analysis of several recent decisions of the HCJ on petitions that challenged practices of Haredi (ultra-orthodox) communities that are considered discriminatory and segregatve in non-Haredi circles. In the 2009 Noar Ke-Halacha case, the applicant, a Haredi of Sephardi (Eastern, North African/Asian) origin, challenged the discrimination of Haredi high school girls in Immanuel, a religious local authority. The HCJ’s order to eliminate all types of discrimination then led to complex dynamics, including the evasion of authorities, the defiance of parents, and in a broader context, the continuance of this practice in other cities. In the Ragen decision, delivered in January 2011, the HCJ shirked from enforcing a straight rule against the practice of separating men and women on public buses. Although the decision was couched with strong criticism, the court approved the government’s adoption of a year’s trial in which the practice would continue voluntarily. In the Azaria affair, filed and removed from the dock in October 2011, the court relied on the respondent’s undertaking to prevent future separation between men and women in the sidewalks of Mea Shearim (an ultra-orthodox neighborhood) during the religious festival of Simchat Tora, despite the breach of an identical undertaking in the previous year. These dynamics, tentatively considered against the recent rise of ultra-orthodox extremism, support an analysis of the role of the court, which is based on a dialogue/conversation model. Under this model, the judiciary is an important, but not supreme, player in an ongoing process of decision-making in the public sphere. Not necessarily the final arbiter, the court operates, inter alia, as a mediator between contesting parties and offers access to weakened groups who have no other direct access to the political process.